Janus v. AFSCME and the future of unions

On June 27, the U.S. Supreme Court overruled the 1977 decision in Abood v. Detroit Board of Education. That decision said that making non-union members pay for the union’s political activities violated the First Amendment, but that it was constitutional to require non-members to help pay for a union’s collective bargaining and contract administration costs. The ruling added that this would ensure “labor peace.”

Now, in the Janus v. AFSCME case, the Supreme Court has ruled by a 5 to 4 margin that non-members should not be required to pay “agency fees” or “fair share.” Doing so, the Court majority agreed, would violate those workers’ rights to free speech and free association.

In effect, the decision applies to an estimated five million non-union workers in state and local governments where they benefit from union contracts. Public-sector workers in all 50 states are now “right to work.”

The Janus decision is clearly an attack that will reach further than the courts. It is a key step in the long-term campaign by the ruling class to hobble the unions and to divide workers from each other at local worksites. This was clear with the right-wing mobilization within four hours of the court decision by organizations funded by corporations and right-wing foundations. These groupings sent hundreds of thousands of e-mails and postcards to public workers around the country, and even visited workers at home, in an effort to convince them to drop from union membership.

U.S. capitalism’s anti-labor drive also achieved a court victory a month earlier with the ruling in Epic Systems v. Lewis—an attack on private-sector workers. That decision restricts the right of workers to join together in class-action lawsuits against labor law violations by their employer.

The Janus case went to the Supreme Court after Illinois Governor Mark Rauner, a Republican, had filed a 2015 lawsuit challenging the fees. When a lower court dismissed Rauner from the case on grounds that he lacked standing, the amended lawsuit was filed on behalf of Mark Janus, a public-sector worker in Illinois, against AFSCME Council 31. Janus maintained that since he is a government employee, all collective bargaining decisions are inherently political, and that the First Amendment protects him from having to support such political expression unwillingly.

Janus’s legal fight was supported by the right-wing and anti-union National Right To Work Legal Defense Foundation and the Liberty Justice Center.

President Trump tweeted after the Court’s decision, “Big loss for the coffers of the Democrats!” Actually, the coffers for Democratic Party politicians are still bulging, while the Janus case steals funds that are used for collective bargaining, filing grievances, and other measures used to enforce contracts for union members.

An organizing model in “right to work” states

Unions have been organizing successfully in “right to work” states, but for large unions with a top-down governing structure, it will be a challenge to move to an effective organizing model. Many SEIU organizers who have been successful in “right to work” states like Arizona and Florida have insisted on creating a structure to empower local work sites. Members, they say, must be free to make decisions where they work.

One organizer pointed out, “The Executive Board or Board of Directors are too remote from the worksite. With ‘right to work’ there needs to be new models. This includes taking power from the Board and giving it to worksites.” This is a good beginning to advance union democracy and power.

Union growth and victories derive principally from the exercise of strong working-class power. This requires a confident and democratically engaged rank-and-file, with a militant leadership that can unite the union and its allies.

While dues check-off and agency fees may facilitate the funding of organizing and grievance procedures, these financial measures are completely subordinate to the construction of unions in which membership growth and financial contributions reflect the workers’ overall confidence in the union’s cause. Taking solid measures to build fighting, class-struggle unions that are fully democratic and responsive to the ranks will be an effective answer to the Janus decision.

In the middle of the deliberations of the Janus case, there was an upsurge of militancy in traditionally “right to work” states. The strikes started with teachers in West Virginia in March and moved to Kentucky, Arizona, Colorado, Oklahoma and North Carolina. All of these states have laws banning strikes. One teacher said, “What are they going to do, arrest 15,000 of us?”

The teachers were striking not only for their contract but to demand that the legislatures fund public schools. In some states the union tried to get them to return to work, but the teachers refused until they got what they needed in writing from the legislature.

There are many lessons the labor movement can learn from these strikes. No strike is “illegal“ if you have enough solidarity to say, as the teachers did, “Come and get us.” They achieved more from the state legislature in a couple of days than in years of sitting down and “telling their stories” to disinterested legislators. They certainly got their attention. As with all strikes, theirs ended when the bosses just wanted everything to be normal again—i.e., “labor peace.”

How did we win union rights?

The Wagner Act of 1935 is often credited with giving basic rights to some private-sector workers to organize unions and engage in collective bargaining. But those rights were not simply handed over to workers from President Roosevelt’s allegedly “sympathetic” Democratic Party administration. They were granted only because workers had already been organizing and fighting for their rights.

Two years before the Wagner Act was signed, several major labor struggles erupted, and general strikes took place in Minneapolis and San Francisco in 1934. A massive strike wave got underway, which resulted in the formation of the Congress of Industrial Organizations (CIO), in which tens of thousands of workers were newly organized.

When President Roosevelt signed the Wagner Act, he explained that it was to be a new compact between labor and the bosses for “labor peace,” which of course was the goal of U.S. capitalists then as today.

The teachers showed us a moment in which independent working-class organizations displayed their power in the political arena. The teachers refused to be hijacked by the Democratic and Republican politicians in the state legislatures. Building on the teachers’ example, U.S. workers need to exercise political power with their own independent party. A labor party, representing a fighting labor movement, could leave the twin parties of capitalist war, racism, and economic plunder in the dust. A labor party, working with its allies among all oppressed people, would be an historic and permanent gain for the cause of the working class in our country.